Prosecutors looking to convict those responsible for the murders of Boulder resident Todd Klarkowski and two other men who were shot and killed execution style in California during an alleged marijuana deal gone awry want to shield the identity of three government witnesses.

A motion filed in the case late last month indicates the prosecution may even seek to have those witnesses testify under pseudonyms, due to fears that exposure of their identities could endanger their lives or the lives of others.

The trial date for defendants Mark Cappello, 47, of Central City, Francis Dwyer, 66, of Truth or Consequences, N.M., and his son, Odin Dwyer, 39, of Black Hawk, was set for the first week of April, but now has been rescheduled for July 7.

Mark Cappello

Klarkowski, 43, was killed Feb. 5, 2013, in Forestville, Calif., along with Raleigh Butler, 24, of North Lake Tahoe, Calif., and Richard Lewin, 46, of Huntington, N.Y., during an alleged attempt by Klarkowski and Lewin to purchase 100 pounds of marijuana from Butler, at $2,300 per pound, and ship it ultimately to New York.

But according to testimony during a preliminary hearing in October in Sonoma County Superior Court for Cappello and the Dwyers, Cappello — who had allegedly been hired to transport the marijuana to New York, with the Dwyers — pulled a gun as the drugs were being bundled and shot the three men dead.

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Odin Dwyer, according to a detective who testified at the preliminary hearing, was present in the house — the home of Butler's mother, who was out of state — but did not know of Cappello's plans. Francis Dwyer, who was at a nearby hotel watching Cappello's dog, also allegedly had no advance knowledge the shootings were going to occur.

A swiftly-moving multi-state investigation led to the arrests, in the ensuing days, of Francis and Odin Dwyer — in New Mexico and Colorado, respectively — and Cappello, as he drove across the state of Alabama. Most of the marijuana was recovered from a storage locker in Westminster, which allegedly had been leased by Odin Dwyer.

Although the evidence presented at the trio's preliminary hearing indicated the Dwyers did not know that Cappello planned to double-cross the victims in the case, all three men stand charged with three counts of murder, burglary and conspiracy. Cappello faces allegations of special circumstances that could lead to the death penalty if he is convicted at trial.

Bid to shield three witnesses' identities

The most recent development in the case is the prosecution's motion late last month seeking a "protective" order to delay disclosure of three state witnesses. Prosecutors also do not want a hearing on that motion to take place in open court.

"What they're asking for, which is very unusual, is they're asking to not have to reveal what they're going to testify to, or their information, until within days of trial," said San Francisco-based attorney Michael Meehan, who is representing Cappello.

Meehan said, "I think it's unfair to anyone to go to trial where there's secret witnesses. And my understanding is they are not related to the actual crime itself, but they might be related to other issues outside the crime — but I am not positive."

He has not yet filed an objection to the motion, and a hearing on the motion is not currently scheduled.

A declaration of prosecutor Traci Carrillo, which accompanies the prosecution motion, asserts that the witnesses concerned are confidential informants. Two, she said, believe that if their identities are revealed too soon, their lives would be in danger. A third, Meehan asserted, fears that disclosure of his/her identity could in turn endanger another person's life.

Once the three witnesses' identities are disclosed to the defense, the prosecution motion argues, "it would appear to be appropriate to permit the witness to testify under a pseudonym to prevent the creation of 'paperwork' which could be used to support the authorization of a contract hit on the government witness."

Family members of Klarkowski chose not to comment on recent case developments.

Victims, defendants' relationships detailed

The prosecution motion also sheds some light on the relationship between the six men involved in the case, as victims or defendants.

It states that "Mark Cappello had contact with Todd Klarkowski in the months leading up to homicides," and that Cappello hired both the Dwyers to assist in the transport of the drugs.

The motion also asserts that Lewin and Klarkowski "met for the first time in New York in January" 2013, planning to travel to California to buy the marijuana, through Butler. It stated, "Lewin and Butler were known to each other; however, Todd Klarkowski was a new addition into the business transaction."

In a separate development, the prosecution has filed a notice of the aggravating factors upon which it would base an argument in support of the death penalty — should it choose to pursue it against Cappello.

The notice cites as aggravating factors the "variety of circumstances and factors above and beyond the elements of the crime itself," victim impact evidence to be presented through next of kin, and Cappello's prior conviction for aggravated assault in Florida in 2001.

Sonoma County Court Supervising Superior Court Judge Robert LaForge has set a pretrial conference in the case for May 13.

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